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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of: )
)
LPTV, TV Translator and FM Broadcast Station ) MB Docket No. 18-214
Reimbursement )
)
Expanding the Economic and Innovation ) GN Docket No. 12-268
Opportunities of Spectrum Through Incentive )
Auctions )
COMMENTS OF
THE NATIONAL ASSOCIATION OF BROADCASTERS
September 26, 2018
TABLE OF CONTENTS
I. INTRODUCTION AND SUMMARY........................................................................................ 1
II. THE COMMISSION’S STATUTORY AUTHORITY................................................................... 3
A. The Commission Has Flexibility in Allocating Fiscal Year 2019 Funds ........................... 4
B. The Commission Should Only Prioritize Payments if Necessary ..................................... 6
III. FM STATION REIMBURSEMENT ......................................................................................... 9
A. Station Eligibility ................................................................................................................. 9
B. Reimbursable Expenses .................................................................................................. 10
1. The Commission Should Clarify its 80 Percent Coverage Standard ..... 11
2. The Commission Should Not Adopt Its Proposed Graduated Scale for Reimbursement........................................................................................ 13
3. Additional Specific Recommendations ................................................... 16
IV. LPTV STATION REIMBURSEMENT .................................................................................... 18
A. Station Eligibility ............................................................................................................... 18
B. Reimbursable Expenses .................................................................................................. 19
V. THE REIMBURSEMENT PROCESS ................................................................................... 20
VI. CONCLUSION .................................................................................................................... 21
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of: )
)
LPTV, TV Translator and FM Broadcast Station ) MB Docket No. 18-214
Reimbursement )
)
Expanding the Economic and Innovation ) GN Docket No. 12-268
Opportunities of Spectrum Through Incentive )
Auctions )
COMMENTS OF
THE NATIONAL ASSOCIATION OF BROADCASTERS
I. INTRODUCTION AND SUMMARY
The National Association of Broadcasters (NAB)1 submits the following comments in
response to the Commission’s Notice of Proposed Rulemaking concerning the reimbursement
of LPTV, TV Translator and FM Radio stations for reasonable expenses incurred as a result of
the repacking of full power and Class A television stations following the close of the broadcast
spectrum incentive auction.2
The successful close of the broadcast spectrum incentive auction in 2017 marked the
end of the first phase of an innovative new model for spectrum reallocation. It also marked
the beginning of a massive, complex and unprecedented relocation of nearly a thousand
1 The National Association of Broadcasters (NAB) is the nonprofit trade association that
advocates on behalf of free local radio and television stations and broadcast networks before
Congress, the Federal Communications Commission and other federal agencies, and the
courts. 2 LPTV, TV Translator, and FM Broadcast Station Reimbursement, Notice of Proposed
Rulemaking and Order, MB Docket No. 18-214, GN Docket No. 12-268, FCC 18-113 (Aug. 3,
2018) (NPRM).
2
broadcast television stations to new channels. With the scope of this relocation more clearly
understood, Congress acted in March to address four specific challenges for television
viewers and radio listeners.
First, Congress allocated additional funding to reimburse television stations for their
involuntary relocation, recognizing that the amount originally allocated had proved to be
insufficient given the number of stations the Commission chose to repack. Second, because
the scope of the repack meant that potentially hundreds of FM radio stations located on or
near towers supporting repacked television stations could have to reduce power or shut down
entirely for extended periods of time to protect tower workers, Congress made FM stations
eligible for reimbursement for expenses needed to maintain service during repacking. Third,
Congress made Low Power Television and TV Translator stations (LPTV stations) displaced by
the auction and repack eligible for reimbursement for expensed necessary to move to new
facilities. Fourth, Congress made funding available for consumer education efforts to ensure
that viewers understand the steps necessary to ensure they can continue to receive over-the-
air television signals.
As the Commission moves forward preparing to implement these provisions, it should
be guided by the goals of minimizing disruption to viewers and listeners and treating
broadcasters involuntarily affected by the repack fairly. As an initial matter, that means the
Commission should not read into the appropriations language limitations that do not exist. In
particular, the Commission should not treat the limitations Congress set forth for Fiscal Year
2018 funds as ceilings, since Congress included no such limitations for Fiscal Year 2019
funds.
Additionally, while NAB generally supports the Commission’s proposals with respect to
both FM radio and LPTV stations’ eligibility for reimbursement, the Commission should not
3
adopt a sliding scale for FM radio reimbursement based on the length of time a station will be
off the air. This misguided proposal is wholly unnecessary, especially absent any indication
that funding will be insufficient to reimburse all disrupted FM radio stations. It is also unduly
restrictive and appears to be based on erroneous assumptions concerning the impacts of
relatively brief disruptions of service. Further, it would have significant unintended
consequences that would disproportionately impact small and rural radio stations and their
listeners.
Finally, NAB generally supports the Commission’s proposed processes and
requirements for reimbursement, which largely mirror the existing reimbursement framework
for repacked television stations. We urge the Commission to slightly modify this process to
increase fairness and predictability for affected broadcasters and ensure that funds are made
available as quickly as possible. In particular, we urge the Commission not to make
reimbursement funds available in multiple allocations unless necessary, and instead to make
80 percent or more of reimbursable expenses available to impacted FM stations immediately.
NAB appreciates the speed with which the Commission is moving to implement
Congress’s directives, and the considerable thought the Commission has put into its
proposals. We look forward to working with the Commission and all stakeholders to seek to
minimize disruption and loss of service associated with the involuntary repack.
II. THE COMMISSION’S STATUTORY AUTHORITY
On March 23, 2018, Congress passed the Reimbursement Expansion Act (REA or Act).3
The REA appropriated additional funding to reimburse repacked full power television stations,
3 Consolidated Appropriations Act, 2018, Pub. L. 115-141, at Division E, Title V, § 511, 132
Stat. 348 (2018) (codified at 47 U.S.C. § 1452(j)-(n)).
4
made FM radio stations eligible for reimbursement for expenses for facilities necessary to
reasonably minimize disruptions of service due to repacking,4 and made LPTV stations that
were displaced by the auction and repack eligible for reimbursement of expenses associated
with moving to new channels.5 The REA also authorized funding for the Commission to engage
in consumer education related to the repack.6 The NPRM seeks comment on the
Commission’s authority to use FY 2019 funds appropriated under the REA to reimburse only
full power and Class A television stations, or to reimburse other broadcasters as well.7 As
described below, the Commission has authority to reimburse other broadcasters, not only
repacked television stations, using FY 2019 funds.
A. The Commission Has Flexibility in Allocating Fiscal Year 2019 Funds
Of the $1 billion Congress appropriated in the REA, $600 million was appropriated for
Fiscal Year 2018, and $400 million for Fiscal Year 2019.8 While the REA specifically
delineates maximum levels of funding for the FY 2018 funds, it sets forth no such spending
caps for the FY 2019 funds.9 Accordingly, the REA provides the FCC flexibility to determine
how to allocate of FY 2019 funds.
At the outset, the plain language of the REA includes no limitations on how to allocate
FY 2019 funds, in stark contrast to the express limitations for FY 2018 funds. It is a well-
recognized principle of statutory construction that where “Congress includes particular
4 47 U.S.C. § 1452(l)(1)(A).
5 47 U.S.C. § 1452(k)(1).
6 47 U.S.C. § 1452(j)(2)(A)(iv).
7 NPRM at ¶ 24.
8 47 U.S.C. § 1452(j)(1)(A)-(B).
9 47 U.S.C. § 1452(j)(2)(A).
5
language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion
or exclusion.”10 In this instance, Congress specifically delineated how the FCC should allocate
the FY 2018 funds. At the same time, Congress said nothing specific about expenditures from
the $400 million FY 2019 fund. That does not suggest that Congress instructed the use of FY
2019 funds to only one of the previously delineated categories. If Congress had intended to
limit the uses of FY 2019 funds to repacked television stations only, it knew how to state that
expressly. Because Congress did not include any such specific limitations on the use of FY
2019 funds, the Commission should not now read them into the statute. Accordingly, the best
reading of the statute is that Congress provided the Commission with discretion to use the FY
2019 funds to reimburse the affected services as it saw fit.
Furthermore, the particular language of the REA confirms that FY 2019 funds may
supplement the funding levels made available in 2018. For example, section 511(j)(2)(A)(iii) of
the Act provides that funds “shall be available to the Commission to make . . . payments” to
FM stations, “including not more than $50,000,000 . . . from funds made available” for Fiscal
Year 2018 (i.e., $600 million).11 The term “including” must be read to allow for additional
payments made to FM stations; payments that could only come from FY 2019 appropriations.
In addition, in section 511(j)(2)(C)(iii), which concerns permissible payments to FM stations
after April 13, 2020, the Act refers to “[a]mounts made available to the TV Broadcaster
10 Rodriguez v. United States, 480, U.S. 522, 525 (1987) (citing Russello v. United States, 464
U.S. 16, 23 (1983)).
11 47 U.S.C. § 1452(j)(2)(A)(iii) (emphasis added).
6
Relocation Fund by paragraph (1)” and does not suggest that such payments to FM stations
are limited to only subsection A of that paragraph (i.e., FY 2018 funds).12
Finally, a contrary interpretation would lead to absurd results. There is no reason to
assume that the absence of a specific direction as to how to allocate FY 2019 funds means
the funds should only be available for full power and Class A television stations. If the
Commission were to take the position that, because FM radio stations are not specifically
mentioned with respect to FY 2019 funds they are not eligible for reimbursement from these
funds, the Commission would be forced to conclude that no entities are eligible for
reimbursement using FY 2019 funds because the REA does not specifically mention any
eligible entities for these funds. Plainly, Congress did not appropriate $400 million for no
one’s use.
In short, as a matter of general statutory construction, specific analysis of the statutory
language at play and the avoidance of an absurd, wasteful and harmful outcome, the only
permissible interpretation of the REA is that Congress provided the Commission with
discretion to allocate the FY 2019 funds as needed.
B. The Commission Should Only Prioritize Payments if Necessary
The NPRM asks how the Commission whether and how the Commission should
prioritize reimbursement payments from FY 2019 funds if it is indeed authorized to use these
funds to reimburse FM and LPTV stations.13 NAB urges the Commission to adopt a
prioritization scheme only if the facts prove that prioritization is necessary – which will be
12 47 U.S.C. § 1452(j)(2)(C)(iii)
13 NPRM at ¶ 25.
7
known once FM radio and LPTV stations have submitted cost estimates under rules adopted
in this proceeding.
The Commission presently has no reason to believe that the $1 billion Congress
appropriated will prove inadequate to reimburse all eligible entities for expenses associated
with repacking and a limited basis, if any, for guessing where shortfalls are likely to arise. The
Commission may have sufficient funds available to reimburse all eligible entities for expenses
incurred during repacking, meaning that any prioritization at this point could prove
unnecessary. Worse, establishing prioritization now could risk sending the wrong signals to,
for example, FM radio stations considering investing in auxiliary facilities to maintain service
during extended disruptions, potentially discouraging or minimizing such investment
unnecessarily.
Instead, the Commission should wait until it has better information on the number of
FM radio and LPTV stations impacted by the repack and the expected costs to construct
auxiliary facilities. The Commission has a statutory deadline of March 23, 2019 to establish
reimbursement rules for FM and LPTV stations.14 At some point shortly thereafter, FM and
LPTV stations will submit cost estimates. Together with updated information the Commission
will have regarding the repacking expenses of television stations and MVPDs, these estimates
will provide the Commission and all stakeholders with a more complete picture of total
demands on available repacking funds. At that point, the Commission can more appropriately
determine: (a) whether there is likely to be a shortfall; (b) what the likely magnitude of the
shortfall will be; and (c) how best to prioritize payments, if necessary.
14 47 U.S.C. § 1452(m)(1); NPRM at ¶ 8.
8
Waiting to see whether prioritizing reimbursement will be necessary is the most
reasonable approach. If the Commission insists, however, on establishing a priority for
payments now – before it is even clear if one will be needed – NAB recommends that the
Commission proceed as follows. First, the Commission should allocate funds as soon as
possible to ensure FM stations are reimbursed for 80 percent of actual or estimated costs
and that FM stations are allocated at least the $50 million specified for FY 2018 funds.
Second, the Commission should fully reimburse full power and Class A television stations that
are involuntarily repacked. Third, the Commission should, assuming funds are available, fully
reimburse FM radio stations affected by the repacking process. Fourth, the Commission
should use remaining funds to reimburse displaced LPTV stations and translators for any
costs exceeding $150 million.
NAB respectfully submits that full power television and radio stations should have
priority over secondary services. LPTV stations, as secondary licensees, are subject to
displacement by full power television stations at any time. The allocation of up to $150 million
for these licensees – which were not guaranteed protection or replacement channels by the
Spectrum Act – should be adequate. In the event it is not, these secondary licensees should
yield to primary licensees with respect to reimbursement just as they do with respect to
licensing decisions. Among full-power licensees, if the Commission is forced to establish rules
for prioritization due to a shortfall in funds, full power and Class A television stations should
receive priority because they will be moving to new permanent facilities – and a shortfall in
funding could have a permanent impact on the facilities those stations are able to construct.
Finally, the Commission should expend remaining funds on consumer education efforts only
in the unlikely event additional funding is necessary and prudent.
9
III. FM STATION REIMBURSEMENT
A. Station Eligibility
NAB generally supports the Commission’s proposals to define those FM radio stations
eligible for reimbursement. NAB supports the NPRM’s tentative conclusion that the term “FM
broadcast station” as used in the REA includes both full-service FM radio stations and FM
translator stations. The REA expressly provides that the term includes both classes of
stations, and both classes meet the definitions set forth in the sections of the Commission’s
rules cited by the REA.15 The NPRM also seeks comment on whether low-power FM (LPFM)
stations should be considered “FM broadcast stations” under the REA and eligible for
reimbursement. Because these stations meet the criteria for “FM broadcast stations” set
forth in the sections of the Commission’s rules the REA cites, they are plainly eligible for
reimbursement.16
NAB also supports the Commission’s proposal to require a causal link between
reimbursable expenses and work associated with a repacked or license relinquishment
station. The REA provides for reimbursement for FM stations for facilities necessary to
minimize disruption “as a result of the reorganization of broadcast television spectrum”
necessitated by the incentive auction.17 Congress’s intent was plainly to protect FM radio
listeners by providing FM radio stations with funding for auxiliary facilities to stay on the air in
the event they were forced to power down primary facilities located on or near those of an
affected television station. The causal link the Commission describes is thus a reasonable
gating requirement for reimbursement eligibility.
15 47 U.S.C. § 1452(l)(2) citing 47 CFR §§ 73.310 and 74.1201.
16 47 U.S.C. § 1452(l)(2) citing 47 CFR § 73.310.
17 47 U.S.C. § 1452(l)(1).
10
NAB also supports the Commission’s tentative conclusion that, to be eligible for
reimbursement, FM stations must have been licensed and transmitting as of April 13, 2017,
the date the incentive auction closed and the Commission released channel reassignments
for repacked stations.18 NAB agrees with the FCC that FM radio stations that began
operations after this date, when information was publicly available with respect to the scope
of the repack and the television stations specifically implicated, assumed the risk of
disruption of service during repacking.19
Finally, the Commission should allow reimbursement for stations impacted by
modifications made by television stations as a result of the alternate channel and expanded
facilities windows.20 These filing windows, authorized by the Commission in its incentive
auction framework order,21 plainly constitute part of the repack. Regardless of whether a
television station is moving to its original channel or an alternate channel, an FM radio
station’s listeners will still be disrupted if the station must reduce power to accommodate
repacking work.
B. Reimbursable Expenses
NAB supports many of the Commission’s proposals with respect to defining eligible
expenses for FM stations impacted repacking. In the NPRM, the Commission identifies three
categories of FM stations potentially affected by repacking: (1) stations forced to relocate
permanently; (2) stations forced to temporarily dismantle equipment or make other changes
18 NPRM at ¶ 52.
19 Id.
20 Id.
21 Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive
Auctions, Report an Order, 29 FCC Rcd 6567, ¶ 553 (2014).
11
not requiring Commission approval; and (3) stations forced to temporarily reduce power or
cease transmission on their primary facility to accommodate antenna or tower
modifications.22 NAB agrees that these three categories should cover the universe of affected
stations and that the first two categories will likely include relatively few stations while the
third category will be the largest.23
NAB further agrees that the REA’s instruction that the Commission reimburse FM
stations for facilities necessary to “reasonably minimize disruptions of service”24 due to
repacking means that FM stations may need to accept some minimal level of disruption
during the repack.25 The REA does not provide that disruptions of service be prevented
entirely, only that they should be reasonably minimized. In defining this standard, we urge the
Commission to seek to curtail listener disruption wherever possible, and not to take
unnecessary or arbitrary shortcuts that harm stations or their listeners. Accordingly, we
recommend that the Commission modify certain of its proposals as described below.
1. The Commission Should Clarify its 80 Percent Coverage Standard
The NPRM proposes a standard of 80 percent coverage of population or area served
for interim facilities to minimize disruption for Category 3 stations. Under this proposal, then,
a station would be eligible for reimbursement if it was forced to reduce power that resulted in
a loss of service to 20 percent or more of its current population served or coverage area, and
would be eligible for reimbursement for facilities necessary to cover 80 percent of the
22 NPRM at ¶ 53.
23 Id.
24 47 U.S.C. § 1452(l)(1)(A).
25 NPRM at ¶ 56.
12
population or service area it presently covers.26 This 80 percent standard is borrowed from
the Commission’s standard for when a station provides service to a given community.27 NAB
does not object to this standard, with certain clarifications and modifications.
First, the Commission should clarify that stations should be reimbursed for interim
facilities that cover at least 80 percent of coverage area and 80 percent of population served,
not one or the other. If a service area has a significant percentage of its population
concentrated in an urban core, it would certainly be unreasonably disruptive for the bulk of a
station’s listeners to lose service even though the station continued to provide service to 80
percent of the geographic area it serves. Similarly, because radio is a mobile medium and
many listeners tune in on the go, preserving service only to an area where 80 percent of the
population lives but not where they drive, work or travel would prove unreasonably disruptive.
Second, as a logical corollary, the Commission should clarify that stations are eligible
for reimbursement if they must reduce power to accommodate repacking work and as a result
will lose more than 20 percent coverage area or population served.
Third, while NAB does not object to the 80 percent threshold as a general rule, there
may be instances where an FM station is simply unable to construct interim facilities that will
cover 80 percent of its coverage area. For example, a station may be unable to find space on
an existing tower that can accommodate interim facilities, and unable to secure necessary
approvals for an alternate tower in time to avoid a loss of service. The Commission should
make plain that stations will still be eligible for reimbursement for interim facilities even if
26 NPRM at ¶ 64.
27 Id.
13
those facilities are unable to provide coverage to 80 percent of the station’s service area or
population served.
2. The Commission Should Not Adopt Its Proposed Graduated Scale for Reimbursement
The NPRM sets out a proposal for graduated reimbursement for stations depending on
how long the service disruption due to repacking lasts.28 Under this proposal, stations off the
air for 10 or fewer days would be eligible for 50 percent of the expenses for interim facilities,
stations off the air for 30 or fewer days would be eligible for would be eligible for 75 percent,
and stations off the air for more than 30 days would be eligible for 100 percent.29 This
proposal fundamentally misapprehends the dramatic and damaging effect of going off air for
FM stations and their listeners. It also would have disastrous and unintended policy
consequences that could disproportionately impact small and rural broadcasters and their
listeners. Moreover, since it is not based on any articulated rationale – i.e., why a station’s
length of time disrupted should correspond to what percentage of its costs are reimbursed –
it is arbitrary and capricious. The Commission should abandon this proposal, and instead
make at least 80 percent of reimbursable expenses available to all impacted FM stations in
an initial allocation, without applying arbitrary distinctions based on the length of time a
station will be off the air.
As described above, NAB agrees that the REA anticipates that FM stations may need to
endure some level of disruption during repacking. NAB respectfully submits that the
Commission’s proposed 80 percent standard for coverage and population served already
reflects a meaningful amount of disruption. Reimbursing stations fully for facilities to preserve
28 NPRM at ¶ 65.
29 Id.
14
at least 80 percent of coverage, with exceptions for a limited number of overnight disruptions,
represents a reasonable approach. The proposed graduated reimbursement scale, by
contrast, would cause severe and unreasonable disruption to FM stations and their listeners.
First, the proposed off-air periods are wholly disconnected from the reality radio station
owners and operators know all too well. Being off the air for a few days, which, under the
NPRM’s proposal would make a station eligible for only 50 percent reimbursement, would
have dramatic and potentially irreversible impacts on listenership. If a station is off the air for
days, listeners will simply conclude that they are no longer able to receive that station’s signal,
and they will stop attempting to tune in. For example, listeners typically have a limited number
of “presets” to tune their favorite stations in their car. If a station is no longer available, even
briefly, listeners will replace that preset with another station. Once that happens, it is
incredibly difficult – and exorbitantly expensive – to win those listeners back through other
avenues. The proposal’s apparent assumption that a couple of days here and there is no big
deal is simply uninformed.
Second, there is currently no basis for believing that the proposal, or anything like it, is
necessary to preserve funds, and adoption of the proposal at this time would discourage
efforts to maintain service during repacking. To the best of NAB’s knowledge, the Commission
has prepared no public or internal estimate for FM repacking expenses that suggests those
expenses are likely to exceed $50 million, let alone any estimate that would suggest the
draconian reimbursement scale set forth in the NPRM is required. Moreover, as noted above,
the Commission has the ability to reimburse FM stations beyond $50 million, if necessary.
Thus, the proposal risks sending dangerous messages to affected FM radio stations for no
reason at all. If the Commission adopts this proposal, many small and rural FM stations that
are unable to afford covering the expenses for interim facilities on their own may simply give
15
up and make no effort to invest in such facilities. As a result, the proposal could discourage
FM stations from standing up interim facilities and deprive listeners of important service for
no good reason.
Third, the proposal creates perverse incentives for repacking vendors to extend the
disruption of FM stations to ensure that those stations will be eligible for reimbursement –
which will generate more business for the same vendors. The Commission has no jurisdiction
over these vendors and is ill-equipped to even attempt to police slow-rolling.
A better and fairer approach would reimburse disrupted stations for all of their
expenses associated with preserving service, while reflecting current practices for
maintenance and tower work that FM stations follow today. Presently, broadcasters make
every effort to coordinate work to limited overnight periods. Maintenance or service work is
typically very limited in duration and conducted overnight wherever possible.
Accordingly, NAB recommends that, once the Commission has received cost estimates
or actual expenses from impacted FM stations, it should immediately make 80 percent or
more of costs available – including at a minimum the $50 million allocated in FY 2018 funds.
We recommend that the Commission consider de minimis those service disruptions that can
be confined to no more than five overnight work periods, with those periods defined as
between the hours of 12:00-5:00 a.m., not the 10:00 p.m.-6:00 a.m. overnight window the
NPRM suggests. Many stations have late programming that extends past 10:00 p.m., such as
sports broadcasts, and many stations consider 5:00 a.m. to be the beginning of morning drive
time. This proposal, combined with the Commission’s 80 percent coverage standard, reflects
the need for FM stations to be flexible and accept some disruption of service during repacking
and is more consistent with actual industry practice. Finally, if and only if the Commission
concludes that prioritization of payments is required based on cost estimates or actual
16
expenses submitted by FM stations, the Commission should prioritize reimbursement of
equipment costs and installation costs, followed by project management and other costs.
3. Additional Specific Recommendations
NAB generally supports the Commission’s proposal not to reimburse FM stations for
new or optional features that are not already present in a station’s existing facilities. We
caution, however, that technological advances may in some cases mean that previously
optional or unavailable features are now standard. As a result, some upgrades may be
inevitable. We also urge the Commission to clarify that maintaining a station’s existing HD
radio capability on interim auxiliary facilities should not be considered an upgrade or an
optional feature.30
The NPRM also seeks comment on whether the REA would permit reimbursement of
new studio transmitter link (STL) equipment for repacked television stations in light of a report
accompanying an earlier version of the REA that instructed the FCC to consider
reimbursement for STL equipment.31 The NPRM notes that such costs are not currently
considered reimbursable for repacked television stations.32 In light of the REA, however, the
Commission should reconsider this policy – and should certainly allow reimbursement for STL
facilities for FM stations if needed. In some cases the justification for new STL facilities for FM
stations may even be stronger than for television stations, since most television stations will
be relocating to new channels but maintaining their facilities in their existing location.
Impacted FM stations, on the other hand, will always need to move to new facilities – the very
reason FM stations are affected at all by repacking is that they may need to power down at
30 NPRM at ¶ 71.
31 Id. at ¶ 40, n. 131.
32 Id. at ¶ 59, n. 182.
17
their current location to protect tower workers. Accordingly, while television stations may need
new STL facilities if their existing equipment is located in the 600 MHz band, many affected
FM stations may be even more likely to require new facilities.
The FCC should also be flexible in reimbursing stations for the minimum leasing term
for a tower lease associated with auxiliary facilities. The NPRM proposes to reimburse stations
only for lease payments incurred during the period of disruption, even if the minimum lease
term is significantly longer.33 We understand the FCC’s concern that reimbursing, for example,
a year long lease when disruption will only last for a month will result in additional demands
on available funding. The only alternative, however, would be for stations themselves to
absorb the additional costs associated with the minimum term of a tower lease, as stations
will be powerless to “force” tower owners to accept a shorter term. This could result in some
stations, particularly smaller or rural stations, being unable to establish interim facilities and
maintain service.
NAB supports the proposal to reimburse tower construction expenses only upon a
showing that no space is available on local towers that would allow the replication or
preservation of service.34 We expect that these instances will be very rare. Nevertheless, in
the event a station is forced to construct a new tower, the Commission should not discount
reimbursement based on the possibility that the new tower may provide the opportunity for
new revenue.35 Such revenues would be wholly speculative and, in any event, could be rivaled
by increased operating expenses associated with a new tower.
33 NPRM at ¶ 68.
34 Id. at ¶ 71.
35 Id.
18
Finally, NAB supports the tentative conclusion that FM stations that have already
received reimbursement from either a repacked television station that is already eligible for
reimbursement or any other source should not be eligible for reimbursement. We also support
the tentative conclusion that FM stations applying for reimbursement should be required to
certify whether they have already received payments from any other source.36
IV. LPTV STATION REIMBURSEMENT
A. Station Eligibility
NAB generally supports the Commission’s proposals to define LPTV and translator
stations eligible for reimbursement. In particular, we support the proposal to define eligibility
to include stations that were granted displacement construction permits as a result of filing
applications in the FCC’s Special Displacement Window (or prior to the window with a grant of
a waiver, or subsequently amended prior to the close of the window).37 We agree that any
other outcome would risk reimbursing stations for facilities that they are ineligible to
construct, which would only waste funds.
NAB also supports including stations whose applications were initially dismissed, but
that refile an application when the Media Bureau lifts the freeze on such applications,
assuming that application is ultimately granted.38 Further, NAB supports the proposal to
include analog-to-digital replacement translators that were eligible and did file displacement
applications during the window.39
36 Id. at ¶ 55.
37 NPRM at ¶ 29.
38 Id. at ¶ 30.
39 Id. at ¶ 35.
19
B. Reimbursable Expenses
NAB generally supports the Commission’s proposals with respect to expenses eligible
for reimbursement. In particular, we support the tentative conclusion to consider reasonable
equipment and other costs necessary to construct facilities authorized by the grant of the
station’s displacement application as “reasonably incurred.”40 We urge the Commission to
allow reimbursement for costs incurred by LPTV and translator stations that were displaced
due to modifications by full power stations during the alternate channel and expanded
facilities windows. As discussed above with respect to FM stations, these filing windows were
authorized by the Commission in its incentive auction framework order and plainly constitute
part of the repack.41
Also, as discussed above, NAB supports the proposal not to reimburse stations for new
or optional features that are not already present in equipment being replaced. We note,
however, that technological advances may mean some features are now standard in
equipment and some upgrades may thus be inevitable.42
The NPRM also seeks comment on whether to reimburse LPTV stations and translators
that may have received funding from other sources.43 NAB respectfully submits that these
stations should not be eligible for reimbursement for amounts they have already received or
will receive from other sources. NAB recognizes that certain entities, including T-Mobile,
volunteered to reimburse some LPTV or translator stations for the costs of relocation before
40 Id. at ¶ 40.
41 Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive
Auctions, Report an Order, 29 FCC Rcd 6567, ¶ 553 (2014).
42 NPRM at ¶ 43.
43 Id. at ¶
20
Congress appropriated funding for this purpose. Those entities made their decisions when it
appeared uncertain that reimbursement would be forthcoming from any other source and, to
the extent the Commission has concerns that there may be insufficient funds to reimburse all
eligible stations, the Commission should not effectively reimburse groups that have already
made the decision to fund the relocation of displaced stations.
Finally, with respect to the prioritization of payments, if the Commission determines,
after receiving cost estimates and actual expenses from displaced LPTV stations, that funding
is insufficient to reimburse all expenses incurred by displaced LPTV stations, we support the
Commission’s proposal to prioritize the payment of certain hard costs, including equipment
and installation over soft costs, such as project management fees.
V. THE REIMBURSEMENT PROCESS
The NPRM proposes reimbursement procedures that largely mirror those already in
place for repacked television stations. At this point, these processes are well-understood by
broadcasters as well as the consultants and attorneys they employ. Accordingly, NAB generally
supports the NPRM’s proposals for the submission of cost estimates and the process for
making funds available. In particular, because many FM stations seeking reimbursement are
likely to have already expended funds, we support the Commission’s proposal to allow FM
stations and LPTV or translator stations to submit actual expenses rather than cost estimates
for costs already incurred.44
We do, however, recommend one modification to the FCC’s proposals. We urge the FCC
not to hold back funding for multiple allocations, as it has for repacked television stations,
unless there is any reason to believe the available funds will be insufficient. Instead, as soon
44 NPRM at ¶ 80.
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as it receives cost estimates from FM stations and LPTV and translator stations, assuming
sufficient funds are available, the FCC should immediately make 80 percent of estimated
costs available to all eligible entities. Unless there is a concrete – not speculative – reason to
believe the available funds will be insufficient, the FCC should consider making even more
available in its initial allocation.
VI. CONCLUSION
NAB commends the Commission and its staff for moving quickly to implement the
requirements of the REA. The NPRM has generally advanced a framework that will treat
stations fairly and will protect viewers and listeners of broadcast television and radio stations
that, through no fault of their own and with no potential benefit, will be forced to reduce
service or relocate to new facilities.
We urge the Commission to embrace the flexibility that the plain text of the REA
provides with respect to FY 2019 funds and reject an unsupported and unduly restrictive
reading that would limit the Commission’s discretion to allocate FY 2019 funds based on
limits that plainly apply only to FY 2018 funds. Because the Commission has flexibility to
allocate FY 2019 funds, it should avoid developing elaborate prioritization schemes that will
likely prove unnecessary. In any event, the NPRM’s proposed graduated reimbursement scale
for FM radio stations is wholly disconnected from industry realities, will create wasteful
incentives for repacking vendors and will disproportionately harm listeners of small and rural
radio stations. The Commission should abandon this concept in its entirety.
We look forward to continuing to work with the Commission to resolve the limited
number of outstanding issues and ensure that affected stations, as well as their viewers and
listeners, are treated fairly in this process.
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Respectfully submitted,
NATIONAL ASSOCIATION OF
BROADCASTERS
1771 N Street, NW
Washington, DC 20036
(202) 429-5430
_________________________
Rick Kaplan
Patrick McFadden
Robert Weller
September 26, 2018